PAM Jewellers Pvt. Ltd., New Delhi V. DCIT, Central Circle- 25, New Delhi

ITA 6691/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4106 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 06-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Assessment record
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.6691/DEL/2017 A.Y. : 2012-13 M/S PAM JEWELLERS PVT. LTD., 1185, 3 RD FLOOR, KUCHA MAHAJANI, CHANDNI CHOWK, NEW DELH 110 006 (PAN: AAFCP7691A) VS. DCIT, CENTRAL CIRCLE-25, NEW DELHI (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. HIREN MEHTA, CA REVENUE BY : SH. ATIQ AHMAD, SR. DR ORDER PER H.S. SIDHU : JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUG NED ORDER OF THE LD. CIT(A)-29, NEW DELHI RELEVANT TO ASSESSME NT YEAR 2012- 13. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY CIT (A)- 29, NEW DELHI (HEREINAFTER REFERRED TO AS CIT (A), IS BAD IN LAW. 2 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF AO IN MAKING AN ADDITION OF RS. 6,70,00,000/- BY TREATING THE SHARE APPLICATION MONEY RECEIVED DURING THE ASSESSMENT YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT. 3. THAT THE CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF AO IN MAKING IMPUGNED ADDITION AND ERRED IN NOT ADJUDICATING THE FOLLOWING SPECIFIC GROUNDS RAISED BY THE APPELLANT. 3.1 PROPER AND REASONABLE OPPORTUNITY WAS NOT PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3.2 COPIES OF CONFIRMATION, ITR, BALANCE SHEET OF ALL THE COMPANIES WHO INVESTED IN SHARE CAPITAL IN THE ASSESSEE COMPANY WERE DULY FILED DURING THE ASSESSMENT PROCEEDINGS TO PROVE THE IDENTITY, GENUINITY AND CREDIT- 3 WORTHINESS WHEREAS THE SAME HAVE BEEN OVERLOOKED BY AO. 3.3 AO LOST SIGHT OF THE FACT THAT THE SHARES ALLOTTED TO INVESTING COMPANIES WERE NOT BOUGHT BACK TILL DATE AND ARE STILL EXISTING IN THE NAME OF INVESTING COMPANIES. 3.4 AT THE FAG-END OF ASSESSMENT PROCEEDINGS I.E. ONLY ON 23.03.2015 THE ASSESSEE COMPANY WAS REQUIRED TO PRODUCE DIRECTORS OF INVESTING COMPANIES AND AS SUCH PROPER AND REASONABLE OPPORTUNITY WAS NOT PROVIDED BY THE AO. 3.5 AS SUFFICIENT COMPLIANCE WAS MADE TO NOTICE ISSUED U/S 133(6) OF THE INVESTING COMPANIES ON 17.02.2015 ESTABLISHING THE FACT OF ALL THESE ENTITIES GENUINELY EXISTED, WHICH HAS BEEN OVERLOOKED BY THE A.O. 3.6 AO RELIED UPON THE STATEMENT OF THE PROMOTERS OF THE ASSESSEE COMPANY NAMELY SH. ASHOK GOEL & SH. PRAVEEN GUPTA WITHOUT PROVIDING A COPY OF THE SAID STATEMENT FOR 4 REBUTTAL AND CROSS-EXAMINATION, WHICH IS AGAINST THE PROPOSITION OF LAW LAID DOWN BY THE DELHI HIGH COURT IN CIT VS. BEST INFRASTRUCTURE (INDIA) PVT. LTD. IN ITA NO. 12/2017 VIDE ORDER DATED 01.08.2017. 3.7 AO HAS RELIED UPON THE INQUIRIES CONDUCTED BY INVESTIGATION WING ON THE INVESTING COMPANIES WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSEE FOR A REBUTTAL DURING THE ENTIRE ASSESSMENT PROCEEDINGS INSPITE OF ISSUING SPECIFIC QUESTIONNAIRES DATED 28.01.2014 AND 13.03.2015. 3.8 AO HAS RELIED UPON THE INQUIRIES CONDUCTED IN RESPECT OF INVESTING COMPANIES BASED OUT OF KOLKA!A WITHOUT CONFRONTING WITH THE FINDINGS OF THESE INQUIRIES TO THE ASSESSEE FOR A REBUTTAL AND CLARIFICATION. 3.9. AO HAS RELIED UPON THE STATEMENT OF SH. RAJESH KUMAR AGGARWAL RECORDED BY DDIT (INV), UNIT-IV(1), KOLKATA WITHOUT PROVIDING A COPY OF THE SAID STATEMENT FOR REBUTTAL AND 5 CROSS-EXAMINATION OF SH. RAJESH KUMAR AGGARWAL WHICH IS AGAINST THE PROPOSITION OF LAW LAID DOWN BY THE DELHI HIGH COURT IN CIT VS. BEST INFRASTRUCTURE (INDIA) PVT. LTD. IN ITA NO. 12/2017 VIDE ORDER DATED 01.08.2017. 3.10 AO HAS RELIED UPON THE FINANCIAL PARAMETERS OF THE INVESTING COMPANIES ON THE BASIS OF FIELD INQUIRIES CONDUCTED BY INVESTIGATION WING, NEW DELHI WITHOUT CONFRONTING THE FINDINGS OF SUCH INQUIRY AND PROVIDING AN OPPORTUNITY FOR REBUTTAL TO THE ASSESSEE COMPANY DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3.11 AO HAS RELIED UPON THE INQUIRIES CONDUCTED BY INVESTIGATION WING WITH THE BANK ACCOUNTS OF THE INVESTING COMPANIES BY CALLING FOR INFORMATION FROM RESPECTIVE BANKS WHILE THE SAME WAS NOT CONFRONTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR REBUTTAL NOR THE CONTENTS OF SUCH INQUIRIES WERE MADE AVAILABLE TO THE ASSESSEE FOR CLARIFICATION. 6 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, AND MODIFY ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING OR EARLIER. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED H ERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF AP PEAL AND STATED THAT NO PROPER AND REASONABLE OPPORTUNITY WAS PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND WITHO UT CONFRONTING THE MATERIAL COLLECTED BEHIND THE BACK OF TH E ASSESSEE. HENCE, IT WAS REQUESTED THAT ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERATION, AFTER GIV ING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED RECORDS , ESPECIALLY THE IMPUGNED ORDER. WE FURTHER NOTE THAT EA RLIER THIS CASE WAS HEARD BY THE BENCH ON 12.12.2017 AND THE B ENCH HAS PASSED THE FOLLOWING ORDER: - 7 AT THE TIME OF HEARING BEFORE US, IT IS STATED BY THE LEARNED COUNSEL THAT THE ASSESSING OFFICER HAS PASSED THE ORDER WITHOUT ALLOWING ADEQUATE OPPORTUNITY TO THE ASSESSEE AND WITHOUT CONFRONTING THE MATERIAL COLLECTED BEHIND THE BACK OF THE ASSESSEE. HE STATED THAT THE ASSESSING OFFICER STARTED INQUIRY WITH REGARD TO SHARE CAPITAL/SHARE PREMIUM ONLY ON 18TH MARCH, 2015 AND COMPLETED THE ASSESSMENT ON 30TH MARCH, 2015. IN BETWEEN, THE ASSESSING OFFICER ISSUED NOTICE U/S 133(6) TO VARIOUS SHAREHOLDERS. HOWEVER, WHETHER ANY COMMUNICATION IS RECEIVED FROM THEM OR WHAT COMMUNICATION IS RECEIVED HAS NEVER BEEN CONFRONTED TO THE ASSESSEE. SIMILARLY, FROM THE ASSESSMENT ORDER, IT IS FOUND THAT THE ASSESSING OFFICER HAS ALSO RECORDED THE STATEMENTS OF SOME OF THE SHAREHOLDERS BUT THE COPIES OF THE STATEMENTS WERE NEVER CONFRONTED TO THE ASSESSEE. LEARNED DR, ON THE OTHER HAND, STATED THAT THE CIT(A) HAS CONSIDERED ALL THESE ASPECTS AND, IN PARAGRAPH 7, HAS RECORDED THE FINDING THAT THE RESULT OF NOTICE ISSUED U/S 133(6) WAS CONFRONTED TO THE ASSESSEE AND HE HAS ALSO RECORDED THAT SUFFICIENT OPPORTUNITY OF BEING HEARD 8 WAS GIVEN. HOWEVER, IN THE ASSESSMENT ORDER, THERE IS NO MENTION WHETHER THE OUTCOME OF NOTICE U/S 133(6) IS EVER CONFRONTED TO THE ASSESSEE, OR THE COPIES OF STATEMENTS WERE SUPPLIED TO THE ASSESSEE. IN VIEW OF THE ABOVE, TO ARRIVE AT THE CORRECT FACTUAL POSITION, WE DIRECT T HE REVENUE TO PRODUCE THE ASSESSMENT RECORD. LEARNED DR HAS SOUGHT TIME OF 15 DAYS. ACCORDINGLY, THE HEARING IS ADJOURNED TO 28TH DECEMBER, 2017. COPY OF ORDER SHEET MAY BE SUPPLIED TO BOTH THE PARTIES. 6.1 ON 28.12.2017, LD. DR HAS FILED AN APPLICATION DATED 28.12.2017 STATING THEREIN DURING THE COURSE OF PREVIOUS HEARING HONBLE BENC H DIRECTED TO OBTAIN THE CASE RECORD FROM FIELD FORMA TION. LETTER WERE ISSUED TO THE CONCERNED AO, BUT ASSESSMENT RECORD ARE NOT RECEIVED AND SOUGHT ADJOURNMENT. ACCORDINGLY, THE CASE WAS ADJOU RNED FOR 18.01.2018. 6.2 AGAIN ON 18.1.2018 THE LD. SR. DR UNABLE TO PRO DUCE THE ASSESSMENT RECORDS AS ASKED BY THE BENCH VIDE ITS O RDER SHEET DATED 12.12.2017, AS AFORESAID AND IN THE ABSENCE THEREOF THE BENCH IS UNABLE TO DECIDE THE CASE IN A PROPER MANNER. THEREFORE, I N THE INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE REMITTED BACK TO THE FILE OF THE AO TO DECIDE THE ISSUES IN DISPUTE AFRESH, AFTER GIVING A DEQUATE OPPORTUNITY OF 9 BEING HEARD TO THE ASSESSEE, KEEPING IN VIEW OF T HE ORDER SHEET DATED 12.12.2017 OF THE TRIBUNAL, AS MENTIONED ABOVE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 22/01/2018. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 22/01/2018 COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES